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2023 DIGILAW 277 (HP)

Jannat v. State of Himachal Pradesh

2023-05-18

SATYEN VAIDYA

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JUDGMENT : (Satyen Vaidya, J.) 1. The petitioner is an accused in case FIR No. 139 of 2022, dated 22.8.2022, registered under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, (for short ‘NDPS Act’, at Police Station, Majra, District Sirmaur, H.P. She is in custody since 22.8.2022. 2. The case against petitioner is that on 21.8.2022, police received secret information at about 8.00 p.m. to the effect that petitioner was indulging in trade of Narcotic drugs. Her husband Malkhan Shah and father-in-law Jambil Shah were already in custody in similar offence. Police searched the house of Malkhan Shah, where petitioner was found present with her children. Commercial quantity of capsules and tablets with salts violating the provisions of NDPS Act were recovered. The case was registered and petitioner was taken in custody. 3. The investigation in the case is complete. Petitioner is facing trial before learned Special Judge. After framing of charge, one prosecution witness has already been examined. 4. Petitioner has alleged her false implication in the case. It is submitted on behalf of the petitioner that she was earlier married to Malkhan Shah for the last about 13 years. Petitioner had four children from the wedlock and youngest of them was only 1½ years old. The husband (Malkhan Shah) and his other family members were involved in trade of narcotic drugs. Petitioner was always opposed to their occupation and as a result the family of husband of petitioner was not on good terms with her. The husband and father-in-law of petitioner were in custody since 22.4.2022 in case registered vide FIR No.63 of 2022 dated 21.4.2022 under Section 22 of the NDPS Act at Police Station, Majra, District Sirmaur. In the year 2022 in one of the raids by police on the house of husband of petitioner, she was also apprehended and made accused in case registered vide FIR No. 28 of 2020 dated 5.3.2020 under Section 21 of the NDPS Act. She had been released on bail in the said case also. 5. It is further contended on behalf of the petitioner that she had obtained divorce from Malkhan Shah and thereafter on 20.5.2022 had married another person named Sanavvar R/o District Saharanpur, U.P. She thereafter was residing with Sanavvar. Except for the youngest child, all other children were left in custody of Malkhan Shah. 5. It is further contended on behalf of the petitioner that she had obtained divorce from Malkhan Shah and thereafter on 20.5.2022 had married another person named Sanavvar R/o District Saharanpur, U.P. She thereafter was residing with Sanavvar. Except for the youngest child, all other children were left in custody of Malkhan Shah. On 21.8.2022 one Ramzan (brother of Malkhan Shah) got the petitioner framed in a false case with a purpose to settle the score. He entertained a belief that Malkhan Shah and Jambil Shah had been arrested on the tip-off provided by petitioner. Petitioner was called to her old matrimonial home on the pretext that she should take away her belongings. Petitioner had to stay back during night in her old matrimonial house on account of her inability to return back to the house of Sanavvar the same day. Taking benefit of the presence of petitioner in the house of Malkhan Shah, she was got arrested on a false charge, whereas, she had nothing to do with alleged offence. 6. The prayer made by the petitioner is opposed on the ground that the involvement of petitioner is in a case involving commercial quantity of contraband. She is not entitled to bail keeping in view the rigors of Section 37 of the NDPS Act (for short, ‘the Act’). Her involvement in a previous case has also been pleaded as one of the grounds to deny her right of bail. It is submitted that petitioner is habitual offender and in case of her release, she may again indulge in similar activity. 7. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 8. The quantity of contraband allegedly recovered from the possession of petitioner constitutes commercial quantity. Thus, in order to succeed in the present petition, petitioner has to make out a case of exception under section 37 of the Act. Exceptions are, that Court has to have reasonable grounds for believing that petitioner is not guilty of such offence and further that she is not likely to commit any offence while on bail. 9. The status report placed on record on behalf of the respondent verifies the factum of petitioner having married Sanavvar, resident of Village Sondhebaans, Police Station Chilkana, District Saharanpur, U.P. on 20.5.2022. It is however denied that petitioner was not residing with Malkhan Shah. 9. The status report placed on record on behalf of the respondent verifies the factum of petitioner having married Sanavvar, resident of Village Sondhebaans, Police Station Chilkana, District Saharanpur, U.P. on 20.5.2022. It is however denied that petitioner was not residing with Malkhan Shah. The factum of divorce between petitioner and Malkhan Shah is also denied. For verification of the factum of marriage of petitioner with Sanavvar on 20.5.2022, relevant documents have been placed on record. 10. Noticeably, the instant petition has been filed by Sanavvar on behalf of the petitioner. The affidavit of Sanavvar in support of contents of petition has also been annexed. Petitioner has also filed copy of complaint submitted by her on 29.6.2022 to Senior Superintendent of Police, Saharanpur, apprehending her false implication at the hands of family of Malkhan Shah. On such complaint a DDR was recorded at Police Station, Chilkana, District Saharanpur. It was specifically alleged by the petitioner that she had been divorced by Malkhan Shah and thereafter she had married Sanavvar. There is no rebuttal on behalf of the respondent to such facts also. 11. The material on record thus reveals that after her marriage with Sanavvar, petitioner was apprehending her false implication at the hands of the family of Malkhan Shah. The factum of marriage of petitioner with Sanavvar on 20.5.2022 is a fact which is unrebutted. Despite the passing of order dated 27.4.2023 by this Court requiring the respondent to verify the facts alleged in the petition, nothing was placed on record to suggest that the plea of marriage of petitioner with Sanavvar was false or despite such marriage petitioner was residing in the house of Malkhan Shah. It being so, it is not understandable when petitioner had married Sanavvar in May 2022, why she would reside in her first matrimonial home. It also cannot be inferred that the complaint dated 29.6.2022 submitted by the petitioner to Senior Superintendent of Police, Saharanpur was in preparation to commit offence in future. Be that as it may, the contentions raised by petitioner cannot be brushed aside lightly. 12. The “reasonable grounds for believing” as required in Section 37 of the NDPS Act cannot be read as belief to be formed on the basis of proved facts. At the stage of adjudicating plea for bail, the grounds for such belief can be formed on the basis of available material. 12. The “reasonable grounds for believing” as required in Section 37 of the NDPS Act cannot be read as belief to be formed on the basis of proved facts. At the stage of adjudicating plea for bail, the grounds for such belief can be formed on the basis of available material. The belief under Section 37 of the Act also cannot be said to be a substitute for an opinion as to innocence of the bail petitioner. Rather, it has to be a prima-facie satisfaction of the Court as regards the availability of facts which if proved, may result in acquittal of the accused. 13. The existence of previous case under NDPS Act against petitioner also is to be seen in light of above noted facts. She cannot be termed to be a habitual offender. Petitioner is already on bail in previous case. Her defence is that her husband and his other family members had been indulging in illegal activity against her wish and advice. Petitioner was involved in the case by the police simply because she was a member of the family of Malkhan Shah and Jambil Shah. Except as above, no criminal antecedents have been attributed to the petitioner. 14. Keeping in view the facts of the case, in my considered view there is sufficient material on record which if proved, may result in acquittal of the petitioner. Similarly, it also cannot be said that the petitioner if released on bail is likely to commit any other offence. She has remarried and is living with her husband and a young child of about two years. 15. It is not the case of respondent that the petitioner has potential to win-over the prosecution witnesses. No material to suggest any such inference has been placed on record. The petitioner has a permanent abode, she is residing with her husband at Village Sondhebaans, Police Station Chilkana, District Saharanpur, U.P. and there is no likelihood of her absconding or fleeing from the course of justice. 16. No material to suggest any such inference has been placed on record. The petitioner has a permanent abode, she is residing with her husband at Village Sondhebaans, Police Station Chilkana, District Saharanpur, U.P. and there is no likelihood of her absconding or fleeing from the course of justice. 16. Keeping in view the peculiar facts and circumstances of the case, the petition is allowed and the petitioner is ordered to be released on bail in case registered vide FIR No.139 of 2022, dated 22.8.2022, under Section 22 of the NDPS Act, at Police Station, Majra, District Sirmaur, H.P. on her furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One lacs) with one surety in the like amount to the satisfaction of learned trial Court. This order is, however, subject to the following conditions: i) That the petitioner shall not indulge in any criminal activity and in the event of breach of this condition, the bail granted to the petitioner in this case, shall automatically be cancelled. ii) That the petitioner shall not leave the territory of India without express leave of Trial Court during the Trial. iii). That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case and shall not tamper with the prosecution evidence. iv) That the petitioner shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion. 17. Any observation made in this order shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.